Channell v. State

• Decision Date: 30 November 1995
• Docket Number: No. 64A03-9503-PC-67,64A03-9503-PC-67
• Citation: 658 N.E.2d 925
• Parties: Paul B. CHANNELL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 925

658 N.E.2d 925

Paul B. CHANNELL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 64A03-9503-PC-67.

Court of Appeals of Indiana.

Nov. 30, 1995.

Rehearing Denied Feb. 27, 1996.

Transfer Denied May 1, 1996.

Susan K. Carpenter, Public Defender of Indiana and John A. England, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana and Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

STATON, Judge.

Paul B. Channell ("Channell") appeals from the trial court's denial of his petition for post-conviction relief. Channell presents six issues for appellate review which we restate as follows:

I. Whether the trial court erred in its jury instruction for attempted murder.

II. Whether there was sufficient evidence to support Channell's conviction for robbery.

III. Whether Channell's convictions for attempted murder and robbery constituted double jeopardy.

IV. Whether the trial court erred in its jury instruction for robbery.

V. Whether prosecutorial misconduct interfered with Channell's right to a fair trial.

VI. Whether Channell was denied the effective assistance of appellate counsel.

We affirm in part, reverse in part, and remand.

The pertinent facts reveal that in June 1989 Channell was found guilty of attempted murder, a class A felony ¹, robbery, a class A felony ², and battery, a class C felony ³, for which he was sentenced to forty years in prison. This court affirmed the trial court's judgment by memorandum decision on May 16, 1991. In September 1993, Channell filed a petition for post-conviction for relief. Following a hearing, the trial court denied the petition. This appeal ensued.

Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Weatherford v. State (1993), Ind.App., 619 N.E.2d 915, 917, reh. denied. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Id.

I. Jury Instruction--Attempted Murder

Channell contends that the trial court's jury instruction for attempted murder constituted fundamental error. Fundamental error is error that not corrected would deny the defendant due process. Ward v. State (1988), Ind., 519 N.E.2d 561, 562. This court will review an issue not properly raised and preserved only when a blatant violation of basic principles has occurred, and the harm or potential for harm cannot be denied. Id.

The jury received the following instructions:

The crime of attempt is defined by statute as follows:

A person attempts to commit a crime, when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.

To convict the defendant the State must have proved each of the following elements:

The defendant

1. Knowingly or intentionally

2. engaged in conduct

3. that the conduct was a substantial step toward the commission of the crime of murder.

If the State failed to prove each of these elements, you should find the defendant not guilty.

If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of the crime of attempt, a class A felony.

* * * * * *

The crime of murder is defined by statute as follows:

A person who knowingly or intentionally kills another human being, or kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery, commits murder, a felony.

To convict the defendant the State must have proved each of the following elements:

The defendant:

1. knowingly or intentionally

2. killed

3. another human being [name].

[or]

The defendant

1. killed

2. another human being [name]

3. while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery.

If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of murder, a felony.

* * * * * *

The Indiana Supreme Court has recently stressed the well-settled rule that any instruction which purports to set forth the elements of attempted murder must include specific intent. See Greer v. State (1994), Ind., 643 N.E.2d 324, 326, reh. denied; Beasley v. State (1994), Ind., 643 N.E.2d 346, 348, reh. denied. To convict a defendant of attempted murder, the jury must find that the defendant acted with the specific intent to kill when he took the substantial step towards committing the crime. Beasley, supra. Absent the inclusion of specific intent as an element of attempted murder, individuals who act without the necessary mens rea could be found guilty of attempted murder. Greer, supra.

The instructions given here did not inform the jury that the State was required to prove beyond a reasonable doubt that the defendant, with the intent to kill, engaged in conduct which was a substantial step toward such killing. Instead, these instructions allowed the jury to conclude that because Channell knowingly or intentionally beat the victim, he "attempted murder". This is in error.

Nevertheless, because Channell did not object to these instructions at trial, our review is limited to whether fundamental error occurred. Fundamental error results from the giving of an attempted murder instruction when the instructions as a whole failed to inform the jury that the defendant must have intended to kill the victim. Id. Fundamental error may be avoided where the charging information or other instructions informed the jury that, in order to convict, it must find that the defendant was attempting to kill the victim at the time of the attack. Parks v. State (1995), Ind.App., 646 N.E.2d 985, 987, trans. denied (citing Jackson v. State (1991), Ind., 575 N.E.2d 617, 621).

In Jackson, the Indiana Supreme Court affirmed the defendant's conviction despite erroneous jury instructions because (1) the instructions included "attempting to kill" language; and (2) the central issue in the trial was whether the defendant was the gunman, not whether the defendant intended to kill the victim. Jackson, supra. There, the intent to commit murder was clear because the defendant shot the victim at close range into his neck, leaving the controlling issue whether the defendant was the gunman. Id. The court noted:

... [T]he instruction required that the State prove that, when the defendant fired his pistol at [the victim], he was 'attempting to kill' him. While 'attempting to kill' is not synonymous with 'intending to kill', we believe that no significant potential for harm resulted from the substitution of 'attempting' for 'intending' in this case.

Id. Relying on Jackson, the State contends that Channell's defense was the identity of the attacker and that a proper instruction would have had little effect on the outcome of the trial.

Unlike the instruction in Jackson, the instructions here did not indicate to the jury that the defendant was "attempting to kill" the victim. The first condition of Jackson was not met and the instructions here affirmatively misled the jury. Fundamental error occurred. Beasley, supra, at 348. Therefore, we reverse Channell's conviction for attempted murder.

II. Sufficiency of the Evidence

Channell next contends that the post-conviction court erred in denying his claim that there was insufficient evidence to support his conviction for robbery. Channell concedes that he did not raise this issue on direct appeal but argues that the State's failure constituted fundamental error. As indicated supra, fundamental error is error that not corrected would deny the defendant due process. Ward, supra.

Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Jones v. State (1992), Ind., 589 N.E.2d 241, 242.

Robbery is a class A felony if it results in serious bodily injury to any person other than the defendant. I.C. § 35-42-5-1. Serious bodily injury is bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ. I.C. § 35-41-1-25.

Channell contends that the State did not demonstrate that the victim, Atkins, suffered serious bodily injury because the State failed to show that Atkins suffered extreme pain. We disagree. At trial, Atkins testified that Channell choked him with his forearm and with a cane, struck him in the face and head, hit him in the head with an old fashioned flat iron, and repeatedly stabbed him in the head with a fork requiring eighteen stitches. Ample evidence exists to support Channell's conviction for robbery as a class A felony. See Payne v. State (1985), Ind., 484 N.E.2d 16, 19 (conviction for class A felony robbery supported by evidence that defendant struck victim's head causing bruising and soreness which showed that victim suffered physical pain). There is no fundamental error here.

III. Double Jeopardy

Channell contends that his conviction for robbery violates the prohibition against double jeopardy. Channell did not raise this issue on direct appeal but we address this issue because a double jeopardy violation constitutes fundamental error. Odom v. State (1995),...